M/S SRI MAHAVIR AGENCY & ANR. versus THE STATE OF WEST BENGAL & ANR. on 17 April 2023

1. The appellant was accused in a complaint filed under Section16(1)(a)(i) read with Section 7 of the Prevention of Food AdulterationAct, 1954 (for short “the Act”). He was convicted and sentenced toundergo rigorous imprisonment for a period of six months by SeniorMunicipal Magistrate, Calcutta. In appeal, the conviction and sentenceof the appellant was upheld by the Additional District & Sessions Judge,Fast Track Court, Calcutta vide judgment dated 26.06.2009 in CriminalAppeal No.106/2007. The order was challenged before the High Courtat Calcutta by filing a revision petition bearing C.R.R. No.64/2014 whichwas dismissed on 08.06.2016. The judgment has been impugned beforethis Court.

2. Learned counsel for the appellant raised a legal argument andsubmitted that the appellant is merely a vendor who purchased fooditem pan masala, namely, ‘Pan Parag’ from M/s Kothari Pouches Limited,the manufacturer, in sealed packaged condition and sold it to its customers.In terms of Section 14 of the Act, the manufacturer had given warrantyabout the nature and quality of the product sold by the petitioners. It wasin the form of a bill having a specific note with reference to the warranty.The protection is available to the appellant in terms of Section 19(2) ofthe Act which provides for defences which may be available inprosecutions under the Act. The Courts below failed to consider theaforesaid legal argument and upheld the conviction.

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A3. On the other hand, learned counsel for the respondentssubmitted that it is a case in which samples of pan masala namely ‘PanParag’ were collected from the business premises of Chanda Aggarwal,buyer of pan masala from the appellant. Initially complaint was filedagainst Chanda Aggarwal and Binod Agarwal. However, on anapplication filed by them, the appellant was impleaded as an accused asBthey had produced the bill showing purchase from the appellant. Onlythe appellant was convicted in the said matter as Chanda Aggarwal andBinod Agarwal were given benefit of protection under Section 19(2) ofthe Act. The samples of seized pan masala were tested twice, once bythe Public Analyst for Calcutta Municipal Corporation and then by CentralCFood Laboratory at CFTRI, Mysore on the application of the appellant.Both times the sample did not conform to the standards laid down for‘Pan Masala’ under the Act and Rules framed thereof and the testsfailed. Hence, the offence was clearly established.

4. It was further submitted that the appellant cannot be allowed toDgo scot-free only on technical grounds. A warranty has to be given bythe manufacturer or distributor in the prescribed form. In the case inhand, there is no such warranty produced by the appellant. There areconcurrent findings of fact recorded by all the Courts below. Anotherargument raised is that the appellant cannot be said to be a vendor. Nocase for interference is made out.E

5. In response to the arguments raised by learned counsel for therespondents, the learned counsel for the appellant referred to theConstitution Bench judgment of this Court in Mangaldas RaghavjiRuparel and another v. State of Maharashtra State[1]to submit thatthough the word “Vendor” has not been defined in the Act, however, itFhas been defined to mean a person who has sold the article of food,which is alleged to be adulterated.

6. Heard learned counsel for the parties and perused the relevantreferred record.

7. To appreciate the arguments raised by the learned counsel forGthe parties, reference to provisions of Sections 14 and 19 of the Actwould be relevant. The same reads as under:- “14. Manufacturers, distributors and dealers to givewarranty.—No manufacturer or distributor of, or dealer in, H1 AIR 1966 Supreme Court 128

any article of food shall sell such article to any vendor unlesshe also gives a warranty in writing in the prescribed formabout the nature and quality of such article to the vendor:

Provided that a bill, cash memorandum or invoice in respectof the sale of any article of food given by a manufacturer ordistributor of, or dealer in, such article to the vendor thereofshall be deemed to be a warranty given by such manufacturer,distributor or dealer under this section.

Explanation.—In this section, in sub-section (2) of Section19 and in Section 20-A, the expression “distributor” shallinclude a commission agent.”

“ 19. Defences which may or may not be allowed inprosecutions under this Act.—(1) It shall be no defence in aprosecution for an offence pertaining to the sale of anyadulterated or misbranded article of food to allege merelythat the vendor was ignorant of the nature, substance or qualityof the food sold by him or that the purchaser having purchasedany article for analysis was not prejudiced by the sale.

(2) A vendor shall not be deemed to have committed an offencepertaining to the sale of any adulterated or misbranded articleof food if he proves—

(a) that he purchased the article of food—

(i) in a case where a licence is prescribed for the salethereof, from a duly licensed manufacturer, distributor,or dealer.

(ii) in any other case, from any manufacturer, distributor,or dealer, with a written warranty in the prescribedform; and (b) that the article of food while in his possession wasproperly stored and that he sold it in the same state as hepurchased it.

(3) Any person by whom a warranty as is referred to in Section14 is alleged to have been given shall be entitled to appear atthe hearing and give evidence.”

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A8. A perusal of Section 14 of the Act shows that there is a bar onthe manufacturer or distributor or dealer to sell any article to any vendorunless he has given a warranty in writing about the nature and quality ofsuch article to the vendor. Rule 12A of the Prevention of FoodAdulteration Rules, 1955 (for short, “the Rules”) prescribes the procedureto give warranty.B

It reads as under:-

“12A. Warranty.- Every manufacturer, distributor, or dealerselling an article of food to a vendor shall give eitherseparately or in the bill, cash memo or a label a warranty inCForm VIA.”

9. Proviso to Section 14 thereof provides that a bill, cashmemorandum or invoice in respect of the sale of any article of foodgiven by a manufacturer or distributor of, or dealer in, such article to thevendor thereof shall be deemed to be a warranty given by suchDmanufacturer, distributor or dealer.

10. Form VIA, as referred to in 12A of the Rules provides text ofthe warranty to be furnished by the manufacturer, distributor or dealerselling the article of food. The same reads as under:- E

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11. A conjoint reading of Section 14, Rule 12A and Form VIAprovides that no manufacturer or distributor or a dealer of any foodarticle shall sell such article to any vendor unless he has given a warrantyin writing in the prescribed form regarding nature and quality of sucharticles to the vendor. The procedure to give a warranty has been providedin Rule 12A of the Rules. Proviso to Section 14 provides that even a bill,cash memo or invoice in respect of sale of any article given by themanufacturer or distributor or dealer shall be deemed to be a warrantygiven by such manufacturer, distributor or dealer. Form VIA providesthe text of the warranty to be given.

12. Exhibit C/Annexure P-1, i.e. Invoice No. 1377 dated12.08.1999 vide which the appellant had purchased the ‘Pan Masala’from M/s Kothari Pouches Ltd., is on record. It contains a certification“1. We hereby certify that the goods mentioned in this invoice arewarranted to be of nature and quality which theses purport to be.”A perusal of the aforesaid certification given by the manufacturer of the‘Pan Masala’ shows that it was in terms of the requirement of law.

13. Section 19(2) of the Act provides for the defences which areavailable to a vendor from prosecution under the Act. Sub-clause (ii) ofSection 19(2)(a) of the Act provides that a vendor shall not be deemedto have committed an offence pertaining to the sale of any adulteratedor misbranded article of food if he proves that he purchased the articleof food from any manufacturer, distributor or dealer with a writtenwarranty in prescribed form. Accordingly, the appellant was having avalid defence in terms of Section 19(2) of the Act as the packed itemsold by him namely ‘Pan Parag’ was having a written warranty inprescribed form from the manufacturer.

14. The term ‘Vendor’ as such has not been defined either in theAct or in the Rules. In Mangaldas Raghavji Ruparel’s case(supra),the word ‘Vendor’ is defined to mean a person who has sold the articleof food, which is alleged to be adulterated. The Bench stated:- “The word “Vendor” though not defined in the Act, would obviouslymean the person who had sold the article of food which is allegedto be adulterated.”

15. In the case in hand, it is the appellant who sold the article offood after purchasing the same from the manufacturer through theinvoices which contained the warranty as prescribed under the Act and A

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Athe Rules. Hence, he had the protection available under Section 19(2)(a)of the Act.

16. Though, Section 20A of the Act provides for impleadment ofmanufacturer, distributor, or dealer in a pending complaint, however,nothing was pointed out at the time of hearing that any such action wasBtaken.

17. In view of the aforesaid reasons, the appeal is allowed.Impugned judgment and final order of the High Court is set aside. Bailbonds of the appellant stand discharged.

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Nidhi Jain

(Assisted by : Mayank Batra and Tamana, LCRAs)

Appeal allowed.

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